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1. The plaintiff's claim is dismissed.
2. The costs of lawsuit shall be borne by the Plaintiff.
Reasons
1. Basic facts
A. On March 22, 2007 and August 24, 2007, the Plaintiff entered into a credit guarantee agreement with a stock company B (hereinafter “B”) to guarantee the debt owed to each enterprise bank.
B. C, D (name E before and after the opening of name; hereinafter “D”) and F jointly and severally guaranteed the Plaintiff’s obligation.
C. A corporate bank filed a claim with the Plaintiff on September 16, 2008, when B failed to pay its debt, and the Plaintiff subrogated for KRW 406,84,224 to the corporate bank on December 30, 208.
[Reasons for Recognition: Unsatisfy, Entry of Evidence A 1-1, Purport of the whole pleadings]
2. Assertion and determination
A. The plaintiff's assertion has a claim for reimbursement against B.
However, as the type and content of the company was established in order to avoid debt, the defendant's assertion that he/she has a legal personality separate from B is not permissible under the principle of trust and good faith. Thus, the defendant is jointly and severally liable with B for the performance of his/her obligation to the plaintiff.
B. If a company established a new company with substantially identical form and content in order to evade debts, the establishment of the new company constitutes abuse of company system in order to achieve unlawful purposes, such as evasion of debts of the existing company.
In such a case, the assertion that the above two companies have a separate legal personality against the creditors of the existing company is not permissible under the principle of good faith. Therefore, the creditors of the existing company may claim for the performance of obligations against either of the above two companies.
Here, whether a new company is established with the intention of evading obligations of an existing company is the management status or asset status at the time of closure of the existing company, the time of establishment of the new company, the existence and degree of assets useful for the new company from the existing company to the new company, and the new company from the existing company.